France Admits to Arming Libyan Rebels – Was this Lawful?

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France has admitted supplying weapons to rebels in Libya fighting against Colonel’s Gaddafi’s forces. According to Channel 4 News in the UK:

A senior French diplomatic source who wished to remain nameless told Channel 4 News that the weapon drop “was an operational decision taken at the time to help civilians who were in in imminent danger. A group of civilians were about to be massacred so we took the decision to provide self-defensive weapons to protect those civilian populations under threat.”

“It was entirely justifiable legally, resolution 1970 and 1973 were followed to the letter and it can be assured that there will be no diplomatic crisis despite what the African Union and Russia may say,” the diplomat said.

“France will not rule out more weapon drops in the future as we will take every decision on a case by case basis,” he added. (see also France 24)

It has also been reported that Russian Foreign Minister Sergei Lavrov has stated that

“If this is confirmed, it is a very crude violation of UN Security Council resolution 1970 [which imposes an arms embargo on Libya].”

The battle lines are clearly joined on this issue. Marko and I discussed this issue back in March (see here for my post and here for Marko’s) with comments from readers. My own view remains that SC Res 1973 which “Authorizes Member States . . .  to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya” (emphasis added) explicitly and also structurally creates an exception to the arms embargo in SC Res 1970. However, as I stated at the time, it is only lawful to provide arms to the rebels if that is for the purpose of defending civilians or civilian protected areas. It is unlawful to provide arms for aims that go beyond defence of civilians and civilian protected areas.  This is the position taken by the UK Foreign Office and restatedin relation to this incident (see here).

What the French have done appears to me to be well within the scope of SC Res 1973, if the facts are as presented by France. According France 24:

Colonel Thierry Burkhard, spokesman for the French general staff, told AFP that the shipments were essentially light arms such as assault rifles to help civilian communities protect themselves from regime troops.

Burkhard said France had become aware in early June that rebel-held Berber villages in the Djebel Nafusa highland region south of the capital had come under pressure from the Libyan strongman’s loyalist forces.

“We began by dropping humanitarian aid: food, water and medical supplies,” he said. “During the operation, the situation for the civilians on the ground worsened. We dropped arms and means of self-defence, mainly ammunition.”

Burkhard described the arms as “light infantry weapons of the rifle type” and said the drops were carried out over several days “so that civilians would not be massacred”.

In this case, it appears that the supply was regarded a measure necessary for the immediate protection of a civilian community. However, the worry is that supply of weapons would go further than this and would be for the purpose of removing Colonel Gaddafi. It has also been reported that this is someting contemplated by France.

According to Le Figaro, which said it had seen a secret intelligence memo and talked to well-placed officials, the drops were designed to help rebel fighters encircle Tripoli and encourage a popular revolt in the city itself.

Whether this would be lawful or not would depend on whether such action comes within scope of the “all necessary measures” authorization in SC Res. 1973.  That would in turn depend on whether taking Tripoli and ejecting Gaddafi is regarded as necessary for civilian protection.

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Wojciech Kornacki says

July 5, 2011

My post addresses the legality of providing aid to the civilians struggling against the Qadafi regime for another angle. So long states provide support to the groups or people struggling to self-determination in accordance with the UN Charter, such states will comply with international law. Under the 1974 Definition of Aggression, and the Friendly Relations Resolution, states have an obligation to support self-determination movements in accordance with the purposes of the UN Charter, such as equality, respect of human rights, and self-determination. There is no question that Qadafi is a dictator who has denied to most of the population in Libya its right to fair representation in government for decades. As such, the people of Libya, turned rebels, or Qadafi opponents, who may be civilians not participating in the armed fighting, are essentially struggling for the internal aspect of self-determination, their political and social rights, through peaceful or armed resistance. As such, the exception to the embargo resolution, in a sense recognizes that states may provide assistance to the people struggling for self-determination, so long this is done in accordance with the UN Charter. Providing aid to prevent crimes against humanity meets the requirements of the UN Charter. While most agree that humanitarian, logistical, or financial aid is fine, there are questions as to military aid. In the example provided by the French, France is supporting the Libyan civilians oppressed by Qadafi forces in order to protect their universal human rights. As such, the French actions seem to fall within the scope of UN Charter, the Definition of Aggression, and the Friendly Relations Resolution. The embargo resolution, and its exception simply support the international customary law on states aiding self-determination movements as revealed by the Friendly Relations Resolution on this point.